CRL.A./258/2020 of KAILASH @ BALLI Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 22.10.2020

+CRL. A. 258/2020 and CRL.M. (BAIL) 413/2020KAILASH @ BALLI

.....Appellant

Versus

STATE (NCT OF DELHI)

..... Respondent

Advocates who appeared in this case:For the Appellant:Ms Supriya Juneja, Advocate (DHCLSC).For the Respondent:Mr Ravi Nayak, APP for State.

CORAMHON’BLE MR JUSTICE VIBHU BAKHRUJUDGMENT

VIBHU BAKHRU, J

1.The appellant has filed this appeal impugning judgment dated30.11.2019 whereby he was convicted for offences punishable underSections 392 and 397 of the Indian Penal Code, 1860 (IPC) and Section25 of the Arms Act, 1959 (hereafter ‘the Arms Act’). The appellant alsoimpugns the order on sentence dated 30.11.2019, whereby the appellantwas sentenced to seven years of rigorous imprisonment along with afine of ₹1,000/- and in default of payment of fine to undergo imprisonment for further period of one week for the offencespunishable under Sections 392 and 397 of the IPC. In addition, he wassentenced to three years of simple imprisonment for committing theoffence under Section 25 of the Arms Act along with fine of ₹1,000/-

and in default of payment of fine to undergo further imprisonment forone week. Both sentences were directed to run concurrently.

2.The appellant was prosecuted pursuant to registration of the FIR(FIR bearing no. 364/2015 under Sections 398/397/411 of the IPC andSection 25 of the Arms Act) registered with PS Ranjit Nagar. The saidFIR was registered on 18.06.2015 on the basis of the statement made bya young man named Gyaneshwar (complainant). He was aged aboutnineteen years.

3.The complainant stated that four months ago, he had fever andwas diagnosed as suffering from tuberculosis. He was being treated forthe same. He stated that his doctor had advised him to go for earlymorning walks at about 05:00-06:00 am. He stated that pursuant to thesaid advice, he used to take daily walk at 05:00 am every day in SatyaPark, which is located about 400 to 500 meters away from his residence.He stated that on that date (that is, on 18.06.2015), he had gone to SatyaPark at about 05:00 am and after taking one round of the park, he satdown on the ground underneath tree. He was approached by boy (theaccused) who enquired from him as to what he was doing there. Heresponded by telling him that he just sitting down and not doinganything. At that point, he had his phone in his hand and was listeningto music on the same. He stated that that boy asked him for his mobileand attempted to snatch it away from him. He stated that he pushed thatboy, who fell down. Thereafter, the accused got up and took out smallknife from the pocket of his jeans. He opened the said knife by pressinga button and thereafter, attacked him and took his mobile away. He

alleged that the accused pushed him and left the spot. He further statedthat he followed the accused and when he was near the main gate, hesaw two police officials. He rushed towards them and told them aboutthe incident. At that time, the accused had only gone short distanceaway. The said police officials ran and apprehended the accused. Theysearched him and recovered the phone (Micromax A-106, black andwhite colour, with IME No.911401151902382 and 911401152402887)with the SIM of Aircel bearing no.[REDACTED]. On enquiries, theaccused disclosed his name as Kailash @ Balli and he stated that he wasa resident of K-139, Kathputli Colony.

4.Pursuant to the aforesaid FIR, the accused was charged with thecommission of an offence punishable under Sections 392/397/411 ofthe IPC and Section 25 of the Arms Act. The accused pleaded not guiltyand the matter was set down for trial.

5.During the course of the trial, the prosecution examined sixwitnesses.

6.The prosecution’s case rests mainly on the testimony of thecomplainant and the two policemen, Ct. Jamaludeen and Ct. Pawan,who had apprehended the accused and recovered the complainant’smobile phone and knife from him.

7.Sh Gyaneshwar, the complainant, was examined as PW-1. Hestated that he was suffering from Tuberculosis in the year 2015 and onthe advice of his doctor, he used to go for morning walks. He testifiedthat on 18.06.2015 at about 06:00 a.m., he went to Satyam Park for his

morning walk. After taking one round, he sat down under tree andstarted listening to songs on his mobile phone. In the meantime, aperson (the accused) came there and asked him (PW-1) to show themobile phone. PW-1 testified that on his declining to do so, the accusedentered into scuffle with him. He produced knife and showed thesame to him. He, being so threatened handed his mobile phone (makeMicromax) to the accused. The accused took the mobile phone andproceeded to the gate of the park. PW1 testified that he pursued theaccused and when he reached the main gate, he saw two police officialscoming towards the main gate. He informed them about this incident.Thereafter, the police officials apprehended the accused. They searchedhim and recovered PW-1’s mobile phone and small knife. Thereafter,they (PW1, accused and the police officials) went to the police station.PW-1 stated that his statement (Ex.PW1/A) was recorded at the policestation. He testified that the police official seized the mobile phone andprepared the seizure memo (Ex.PW1/B). He identified his signatures onthe same.He also identified his signatures on the seizure memopertaining to the knife recovered from the accused. He stated that theknife recovered from the accused was sealed in pullanda. The policearrested the accused and PW1 identified his signatures on the arrestmemo (Ex.PW1/D). He stated that thereafter, he received his mobilephone on furnishing the superdarinama (Ex.PW1/E). PW1(Ex.PW1/F)produced the original bill of his mobile phone and its photocopy wastaken on record. The Additional PP sought permission and was allowedto put leading questions to PW1 regarding the manner of assault and thesite plan.

8.In response to the questions put by the learned APP, PW1deposed that the accused had taken out knife and opened it with thehelp of button and attacked him (mere upar war kiya). He affirmedthat that the accused grabbed him and snatched his mobile phone (ekhath se pakad kar mera mobile phone chin liya). In his cross-examination, he affirmed that several other public persons were presentin the park and, that there were public persons near him at the time ofthe incident. He stated that neither did he raise any alarm during theincident nor did he ask for help from those public persons. He statedthat though those persons were looking at him, they did not comeforward to help him. He stated that the accused was apprehended on themain road outside the park. The police officials had pursued the accusedon foot by walking briskly. The police officials had not joined anypublic person in the proceedings at this stage. The accused was taken tothe PS on motorcycle by the police officials. PW-1 denied that he hadgone to the PS on the same motorbike. Thereafter, PW-1 stated that hewent to his house and then went to the PS along with his mother. Heaffirmed having signed the sketch of the knife and the site plan.9.SI Kamlesh Kumar, PS Ranjit Nagar, deposed as PW-2. He statedthat on 18.06.2015, he was present in the PS at around 06:00 a.m., whenCt. Jamaludeen and Ct. Pawan came there along with the accused andthe complainant Gyaneshwar. He stated that Ct. Pawan was holding theaccused and Ct. Jamaludeen produced mobile phone and knifestating that the same were recovered from the possession of the accused.PW-2 stated that he recorded Gyaneshwar’s statement. He stated that

he prepared the sketch of the knife (Ex.PW 2/A). The said knife wasseized vide seizure memo (Ex.PW1/C). Thereafter, he prepared apullanda of the said knife and sealed it with the seal of RTNGR-II. Hestated that he deposited the case property in the malkhana.

10.He testified that thereafter, he along with the complainant (PW1)went to Satya Park, Pandav Nagar where he prepared the site plan(Ex.PW2/D) at the instance of the complainant. The complainant gavehim photocopy of the bill of the mobile phone. In is cross-examination, he stated that he handed over the rukka to the duty officerat about 06:30 a.m. He received copy of the same at about 07:30 a.m.after the FIR had been registered. He stated that after sealing thepullandas in the PS, he immediately deposited the same in the malkhanaand the seal of RTNGR-II remained in his possession. He deniedpreparing the arrest memo and personal search memo of the accused.He denied taking the accused’s signatures on blank papers. He statedthat he reached the place of the incident at about 09:00 a.m. along withCt. Pawan. At the spot, he made enquiries from 4-5 persons presentthere but they were unaware about the incident. He denied havingprepared the site plan at the PS.

11.Ct. Pawan Ahlawat, PS Prasand Nagar, deposed as PW-4. Hestated that on 18.06.2015, he was posted at PS Ranjit Nagar. On thatdate, he was on patrolling duty at Satya Park, Pandav Nagar along withCt. Jamaluddin. At the park’s main gate, one boy came running towardsthem and pointed towards another boy who was running towards JankiDass Hospital and told them that the boy running towards Janki Dass

Hospital had snatched his mobile phone after showing him knife.Thereafter, the they caught the boy at Janki Dass Hospital. Ct.Jamaluddin conducted the apprehended boy’s search and recovered onemobile phone of the make Micromax, one knife, one wrist watch and ablack wallet containing ₹110/-. PW- 4 stated that he and Ct. Jamaluddin took the two persons (the complainant and the accused) to the PS andproduced them before SI Kamlesh Kumar. He stated that SI KamleshKumar prepared the sketch of the knife, prepared the pullanda of theknife and sealed it with the seal of RTNGR-II. In his cross-examination,he confirmed that on the date of the incident several persons from thegeneral public were present at Satya Park as well as at the spot wherethey apprehended the accused. He stated that they tried to join publicpersons in the proceedings however no one acceded to their request. Heaffirmed that at about 05:45 a.m., all four of them went to the PS onfoot. He denied that the complainant had gone to his house to procurethe mobile phone’s bill and the same had been called from his house bythe complainant. His mother had brought the same. He further deniedthat the seal was kept by the IO himself and stated that the same wasdeposited in the malkhana.

12.ASI Jamaluddin, PS Pul Prahlad Pur, was examined as PW-5. Hestated that on 18.06.2015, he was posted at PS Ranjit Nagar and was onpatrolling duty along with Ct. Pawan. At Satya Park, they found oneperson running towards them. Upon approaching them, the person toldthem that his mobile phone had been robbed on knife point. Uponapprehending the accused, they found one mobile phone of Micromax

make from the right pocket of his pant and one ‘buttondar’ knife fromthe left pocket of his pants. Thereafter, he stated that the complainantand the accused were taken to the PS. He stated that after completingthe formalities at the PS, the complainant was taken to the spot of theincident by the IO and the site plan was prepared. In his cross-examination, he stated that he requested public persons to join theinvestigation but none of them agreed and left from the area. He deniedthe suggestion that the receipt of the mobile phone was handed over tothe IO by the complainant. The complainant had procured the samefrom his home. He did not remember who brought the same from thecomplainant’s home.

13.Ms Juneja, learned counsel appearing for the appellant contendedthat it is apparent from the testimony of PW1 that it is not entirelyconsistent with his statement on the basis of which the FIR wasregistered. She stated that in his earlier statement, the complainant hadnot made any allegations that the accused had demanded the mobilephone. He had merely stated that the accused had enquired as to whatwas the complainant doing in the park and thereafter, had attempted tosnatch the mobile phone. She further submitted that there is materialinconsistency in the testimonies of the two official policemen (PW4 andPW5) and the testimony of PW1. She stated that PW1 had categoricallydenied that he had gone to the police station along with the two policeofficials. However, PW4 and PW5 had testified that they had takenPW1 to the PS along with them. PW1 had clarified that he had firstgone home for about five minutes and then to the police station along

with his mother. Ms Juneja submitted that in addition to the above, thereis also material inconsistency as to how the accused was taken to thePS. She stated that whereas PW1 had stated that the police officials hadtaken the accused to the police station on motorcycle, while PW4 andPW5 had stated that they had proceeded to the police station on foot.Next, she submitted that there is also an inconsistency in the testimonyof PW2 and PW4. Whereas PW2 had testified that the seal of RTNGR-II remained in his possession after sealing the pullandas. PW4 hadtestified that the IO had deposited the seal in question in the malkhanaafter sealing the pullandas.

14.The contentions advanced by Ms Juneja are unpersuasive. In hisexamination-in-chief PW1 had clearly stated that he along with thepolice officials and the accused had gone to the police station after theaccused was apprehended. In his cross-examination, he had stated thathe had not gone to the police station on the motorcycle, but was askedto reach there separately. He had stated that from the park, he had goneto his house and after five minutes had reached the PS with his mother.The inconsistency in the said statement is not material. It possibly arisesout of PW1’s understanding. He has not disputed that after the accusedwas apprehended, they (the police officials, the accused and him) hadgone to the Police Station. However, that does not mean that they hadwalked together all the way. He too had proceeded to the police stationalthough taking minor detour to his home which he had explained wasabout 400-500 meters away from the park where he was robbed. The

variance in the testimonies on the question whether the accused wastaken on motorcycle or on foot is also not material.

15.The contention that there is material inconsistency in thestatement of the complainant, on the basis of which the FIR wasregistered, and his testimony is also unpersuasive. His narration of theevents clearly indicates the manner in which the offence wascommitted. In his statement, he had stated that he had finished oneround of the park and was sitting under tree. He stated that he had amobile phone in his hands and was listening to music. At that stage, theaccused had approached him and had enquired as to why he was sittingthere. He stated that thereafter, he tried to snatch his mobile phone. Inhis testimony, he stated that the accused had asked him to show hisphone and, on his refusal, had attempted to snatch the same.

16.It is clear that the accused and the complainant had asked fewquestions and thereafter, attempted to snatch the phone. On thecomplainant resisting to give the same, he had threatened him with theknife (which was operated by button). Clearly, the language of theinitial statement made by the complainant and his testimony recordedlater is not expected to be in identical. However, there must beconsistency as to the description of the manner in which the offence wascommitted. In this case there is no inconsistency in that regard.

17.The minor discrepancy whether the seal had been deposited withthe malkhana or had remained with the IO is not material. This is sobecause there is good evidence that the appellant had used the knife incommitting the offence. The testimony of PW1 is unambiguous.

Further, the testimony of police witnesses as well as PW1 clearlyestablishes that the knife used by the appellant was recovered from him.More importantly, recovery of the weapon used is not necessaryrequirement to establish an offence punishable under Section 397 of theIPC and the fact that it is established that it was used is sufficient toconvict the accused under section 397 of the IPC[see decision of theSupreme Court in Ashfaq vs State (Govt. of NCT of Delhi): 2004 (3)SCC 166 and decisions of this court in Imran v. State CRL.A.1351/2013 decided on 22[nd ]April, 2015; Seetal v. State (NCT ofDelhi): (2014) 215 DLT 60; Murlidhar vs State: CRL.A. 279/2002decided on 1[st]June 2018; and Sonu @ Shahnawaz v State (Govt.of NCT of Delhi): CRL.A. 1141/2017 decided on 19[th]November2019]

18.The contention that non-joining of public witnesses raises doubtsas to the case set up by the prosecution is unmerited. This Court findsno reason to doubt the testimony of Police witnesses as well as thetestimony of the complainant (PW1). Joining public witnesses in allproceedings is not mandatory but the same is done to add credibility tothe proceedings. However, in cases where the prosecution has been ableto establish its case beyond reasonable doubt on the basis of thetestimony of the official witnesses and other evidence, non-joining ofpublic witnesses would not be fatal to the case.

19.In Kalpnath Rai v. State: AIR 1998 SC 201, the Supreme Courthad explained “If the evidence of the police officer is found acceptable,it would be an erroneous proposition that court must reject the

prosecution version solely on the ground that no independent witnesswas examined”. In the present case, in addition to the testimony of theofficial witnesses, the testimony of the complainant also establishes theprosecution’s case.

20.This Court has examined the evidence in this case and concurswith the decision of the Trial Court to convict the appellant for theoffences punishable under Sections 392/397 of the IPC and Section 25of the Arms Act.

21.This Court also finds no reason to interfere with the sentenceawarded to the appellant which in any view is the minimum sentencethat can be awarded for an offence punishable under Section 397 of theIPC.

22.The appeal is unmerited and is, accordingly, dismissed. Allpending applications are also disposed of.

OCTOBER 22, 2020RK

VIBHU BAKHRU, J